Minor Guardianship

If the child is a resident of Illinois, the venue is the county where the minor resides. If the child is not a resident of Illinois, the venue is the county where his or her real or personal estate is located.

Parents

Standby Guardian

A parent may designate in a will or other writing a qualified person to assume care of a minor or unborn child if the parents become incapacitated or die. The designation must be witnessed by at least 2 credible witnesses, age 18 or older, neither of whom is the standby guardian.

The Court lacks jurisdiction to appoint a standby guardian where a minor has another able and willing parent whose whereabouts are known, unless such parent consents or fails to object after receipt of notice.

Short-term Guardian

A parent may designate in writing, without court approval, a qualified person to assume the short-term care of a minor or unborn child. The document must be dated, and identify the parent, child, and short-term guardian. It must be signed by the parent and short-term guardian and witnessed by at least 2 additional credible witnesses, age 18 or older. The appointment is effective immediately or on a date certain as listed and extends for 365 days, unless the document specifies the termination of the short-term guardianship at an earlier specified date or event. A short-term guardianship can be revoked at any time.

A short-term guardian is inappropriate where the child has another able and willing parent whose whereabouts are known unless such parent consents by signing the document of appointment.

Limited Custody

Law enforcement may take the minor into limited custody if the officer reasonably believes that the minor is absent from home without parental consent or is beyond control of the parent and in physical danger.

After taking limited custody, the officer must tell the minor the reason for the limited custody and attempt to notify the parent of the location of the minor. If the minor consents the officer shall return or release the minor to the parent. The officer may also facilitate connecting the minor to any necessary supportive or crisis services.

If the parent cannot be reached, the minor refuses return to the parent, or an assisted return is geographically unreasonable, then the officer shall take the minor to an agency providing crisis services. If involuntarily taken, the minor cannot be held for more than 6 hours. Limited custody is not an arrest and no "police record" is created.

Crisis Intervention

Crisis intervention services are provided to a minor taken into limited custody or who requests such services. The officer or agency staff may also facilitate connecting the minor to any necessary supportive or crisis services.

An agency may temporarily shelter a minor if the agency tries to get the minor back home as soon as possible. The minor cannot be sheltered for more than 48 hours without parental consent unless the agency documents that it was unsuccessful in notifying a parent. If the parent cannot be notified, the minor may be sheltered for up to 21 days.

If the parent will not let the minor return home and will not agree on an alternative placement, a report of neglect may be made to the Department of Children and Family Services (DCFS). If DCFS determines the minor is not neglected but is a physical danger, DCFS shall either have the minor admitted to a mental health facility, ask law enforcement to take custody, or make other appropriate action to safeguard the minor and/or others living in the minor’s home.

Investigation of reports of child abuse or neglect under the Abused and Neglected Child Report Act (ANCRA)

ANCRA has its own definitions of “Abused child” and “Neglected child.” 325 ILCS 5/3. An investigation is triggered by a call to the statewide abuse hotline, 1-800-25-ABUSE. Social workers, doctors, teachers, and any occupation that works with children are "mandated reporters," and are required to call the hotline if they have “reasonable cause to believe that a child may be abused or neglected.” Mandated reporters are immune from tort liability for calling the hotline unless the conduct is willful and wanton. DCFS Department of Child Protection investigates the hotline call. It has 60 days to complete the investigation unless extended for good cause.

Practice tip: The parents or caretaker of a minor should be advised that anything they say to DCFS may be used against them in court in any abuse/neglect/dependency proceeding and in any criminal proceeding that may result from a related police investigation. Refusal to cooperate with DCFS investigation is not, by itself, legally sufficient to “indicate” a report or for DCFS to take protective custody of the minor, but may increase the practical risk of both.

At the conclusion of the investigation, the report will be classified as either:

Indicated reports remain on the central register maintained by DCFS for 5-50 years, depending on the seriousness of the allegations, and are a barrier to employment involving children.

An indicated parent or caretaker has the right to an administrative appealhearing at which DCFS must prove the allegations in the report by a preponderance of the evidence. An appeal must be requested by parent or caretaker within 60 days of receiving written notice that report has been indicated. The hearing must be held and decision made by the Director of DCFS within 90 days of the appeal request. Judicial review of the Director’s decision is according to the Administrative Review Law. If the appeal is successful, the report is expunged from the central register.

Practice tip: DCFS is required to provide a copy of the file which contains the written record of the investigation to the indicated parent for the hearing, but requesting it specifically in writing with the appeal request may speed the process.

Child care workers alleged to have abused or neglected a minor are entitled to a conference with DCFS before the conclusion of the investigation, and an expedited appeal hearing process, in which the decision must be made within 35 days of the appeal request.

An indicated report does not necessarily mean that DCFS will take protective custody of the minor and seek to put the minor in the foster care system. It maintains discretion to offer “intact” services to the family or to take no further action. In any case in which DCFS does wish to put the minor in the foster care system it must request the local county state’s attorney to file a petition under the Juvenile Court Act in the Circuit Court.

Actions pursuant to Article II of the Juvenile Court Act of 1987 definitions

Neglect

Any minor under 18 years of age who is not receiving the proper or necessary support, education as required by law, or medical or other remedial care recognized under State law as necessary for a minor's well-being, or other care necessary for his or her well-being, including adequate food, clothing and shelter, or who is abandoned by his or her parent or parents or other person or persons responsible for the minor's welfare, except that a minor shall not be considered neglected for the sole reason that the minor's parent or parents or other person or persons responsible for the minor's welfare have left the minor in the care of an adult relative for any period of time, who the parent or parents or other person responsible for the minor's welfare know is both a mentally capable adult relative and physically capable adult relative, as defined by this Act; or

Any minor under 18 years of age whose environment is injurious to his or her welfare; or

Any newborn infant whose blood, urine, or meconium contains any amount of a controlled substance as defined in subsection (f) of Section 102 of the Illinois Controlled Substances Act, as now or hereafter amended, or a metabolite of a controlled substance, with the exception of controlled substances or metabolites of such substances, the presence of which in the newborn infant is the result of medical treatment administered to the mother or the newborn infant; or

Any minor under the age of 14 years whose parent or other person responsible for the minor's welfare leaves the minor without supervision for an unreasonable period of time without regard for the mental or physical health, safety, or welfare of that minor; or

Any minor who has been provided with interim crisis intervention services under Section 3-5 of this Act and whose parent, guardian, or custodian refuses to permit the minor to return home unless the minor is an immediate physical danger to himself, herself, or others living in the home.

Whether the minor was left without regard for the mental or physical health, safety, or welfare of that minor or the period of time was unreasonable shall be determined by considering the following factors, including but not limited to:

The age of the minor;

The number of minors left at the location;

Special needs of the minor, including whether the minor is physically or mentally handicapped, or otherwise in need of ongoing prescribed medical treatment such as periodic doses of insulin or other medications;

The duration of time in which the minor was left without supervision;

The condition and location of the place where the minor was left without supervision;

The time of day or night when the minor was left without supervision;

The weather conditions, including whether the minor was left in a location with adequate protection from the natural elements such as adequate heat or light;

The location of the parent or guardian at the time the minor was left without supervision, the physical distance the minor was from the parent or guardian at the time the minor was without supervision;

Whether the minor's movement was restricted, or the minor was otherwise locked within a room or other structure;

Whether the minor was given a phone number of a person or location to call in the event of an emergency and whether the minor was capable of making an emergency call;

Whether there was food and other provision left for the minor;

Whether any of the conduct is attributable to economic hardship or illness and the parent, guardian or other person having physical custody or control of the child made a good faith effort to provide for the health and safety of the minor;

The age and physical and mental capabilities of the person or persons who provided supervision for the minor;

Whether the minor was left under the supervision of another person;

Any other factor that would endanger the health and safety of that particular minor.

A minor shall not be considered neglected for the sole reason that the minor has been relinquished in accordance with the Abandoned Newborn Infant Protection Act.

Abuse

Those who are abused include any minor under 18 years of age whose parent or immediate family member, or any person responsible for the minor's welfare, or any person who is in the same family or household as the minor, or any individual residing in the same home as the minor, or a paramour of the minor's parent:

Inflicts, causes to be inflicted, or allows to be inflicted upon such minor physical injury, by other than accidental means, which causes death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function;

Creates a substantial risk of physical injury to such minor by other than accidental means which would be likely to cause death, disfigurement, impairment of emotional health, or loss or impairment of any bodily function;

Commits or allows to be committed any sex offense against such minor, as such sex offenses are defined in the Criminal Code of 1961, or the Criminal Code of 2012, or in the Wrongs to Children Act, and extending those definitions of sex offenses to include minors under 18 years of age;

Commits or allows to be committed an act or acts of torture upon such minor;

Inflicts excessive corporal punishment;

Commits or allows to be committed the offense of involuntary servitude, involuntary sexual servitude of a minor, or trafficking in persons for forced labor or services defined in Section 10-9 of the Criminal Code of 1961, upon such minor; or

Allows, encourages or requires a minor to commit any act of prostitution, as defined in the Criminal Code of 1961, and extending those definitions to include minors under 18 years of age.

Dependent

Who is without proper care because of the physical or mental disability of his parent, guardian or custodian;

Who is without proper medical or other remedial care recognized under State law or other care necessary for his or her well being through no fault, neglect or lack of concern by his parents, guardian or custodian, provided that no order may be made terminating parental rights, nor may a minor be removed from the custody of his or her parents for longer than 6 months, pursuant to an adjudication as a dependent minor under this subdivision (c), unless it is found to be in his or her best interest by the court or the case automatically closes as provided under Section 2-31 of this Act; or

Who has a parent, guardian or legal custodian who with good cause wishes to be relieved of all residual parental rights and responsibilities, guardianship or custody, and who desires the appointment of a guardian of the person with power to consent to the adoption of the minor under Section 2-29.

This section does not apply to a minor who would be included herein solely for the purpose of qualifying for financial assistance for himself, his parent or parents, guardian or custodian or to a minor solely because his or her parent or parents or guardian has left the minor for any period of time in the care of an adult relative, who the parent or parents or guardian know is both a mentally capable adult relative and physically capable adult relative, as defined by this Act.

Temporary protective custody "PC"

Both ANCRA and the Juvenile Court Act authorize DCFS, a physician, or a law enforcement officer to take physical custody of a minor without a court order and over the objection of a parent or caretaker if there is reason to believe that the minor cannot be cared for at home or in the custody of the person responsible for the minor's welfare without endangering the minor's health or safety, and there is insufficient time to seek a court order.

Within 48 hours of taking protective custody– not including weekends or holidays – the minor must be brought before a judicial officer for a temporary custody hearing or released to the parents or caretaker.

Temporary Custody Hearing (“TC”)

Upon filing a petition to adjudicate the minor abused, neglected, or dependent pursuant to Section 2-13 of the Juvenile Court Act, the State’s Attorney may move the court to grant temporary custody of the minor to DCFS or a third party. This requires a three-part showing:

Probable cause that the minor is abused, neglected or dependent;

Immediate and urgent necessity to remove the child from the parents for the minor’s protection; and

Reasonable efforts have been made to prevent having to remove the child.

Adjudication

Proceedings on the petition to adjudicate the minor abused, neglected or dependent are civil in nature. If you practice in Cook County, you should note that Cook County local rules and orders restrict pre-adjudication discovery. Indigent parties must be appointed counsel. 705 ILCS 405/1-5(1). The minor must be appointed counsel and/or a guardian ad litem. In Cook County, the guardian ad litem must be an attorney. Id. Hearing/trial on the petition to adjudicate the minor abused, neglected, or dependent must commence within 90 days of service of process on the parents or caretaker, unless waived. 705 ILCS 405/2-14(b).

Certain special rules of evidence apply. There is no right to a jury trial. 705 ILCS 405/2-18(1). If the parent or caretaker prevails at adjudication, the minor is returned and the case is dismissed. If the State prevails, the case proceeds to a dispositional hearing (Note: an adjudication order, by itself, is not final and therefore appealable).

Dispositional hearing

A dispositional hearing must be held within 30 days of the conclusion of the adjudication hearing. The court determines if it is in the best interest of the minor that the minor be made a ward of the court:

If the court makes the minor a ward of the court and finds the parents fit, it may restore custody of the minor to them, subject to conditions;

If the court makes the minor a ward of the court and determines that parents are unfit, unwilling or unable to care for the minor, it may place the minor in the guardianship of a relative, other person, or DCFS (Note-a finding that a parent is “unfit” in this context is not necessarily the same as a finding that a parent is an “unfit parent” in a termination of parental rights proceeding. See below).

Upon entry of a dispositional order, the case, including the adjudication findings, may be appealed.

Permanency hearing

When DCFS is made guardian at the dispositional hearing, the court must review the case every six months and enter a “permanency goal.” The hierarchical list of available permanency goals is found at 705 ILCS 405/2-28(2). If a parent is involved in the case, the initial goal is usually to return the minor home to the parent. DCFS develops a service plan based on the permanency goal set by the court. The court cannot order DCFS to provide a specific service, but may find that the services are not reasonably calculated to achieve the permanency goal and order DCFS to amend the service plan. For federal funding purposes, every 12 months the Court must enter a finding that DCFS has made “reasonable efforts” to achieve the permanency goal set by the court. Any person interested in the minor may apply to the court for a change in custody or guardian. 705 ILCS 405-2-28(4).

Service appeals

If the parent, minor or foster parent disagrees with tasks or services in the service plan or feels they are insufficient, an administrative appeal process and judicial review is available. See generally 89 Ill. Adm. Code 337.10 et seq.

Return home

The parent or caretaker may apply to the court at any time for a new dispositional hearing, and for findings that the parent or caretaker is fit, willing, and able to care for the minor and should be returned home.

In practical terms, this typically occurs upon satisfactory completion of the service plan.

Termination and restoration of parental rights

The State may choose to file a petition to terminate the parents’ rights and free the minor for adoption. 705 ILCS 405/2-28(4)(b).

Any ground of parental unfitness in the Adoption Act may be alleged. Most commonly seen are grounds that the parent has failed to make reasonable efforts to correct the conditions that brought the minor into the DCFS system or reasonable progress toward return home. A parent must make reasonable efforts and reasonable progress in each nine month period following adjudication or risk termination of their rights. Failure to substantially fulfill the obligations under the service plan is considered failure to make reasonable efforts. 750 ILCS 50/1.D(m).Hearing on the petition to terminate parental rights is bifurcated. Parental unfitness must be proved by clear and convincing evidence. 705 ILCS 405/2-29(2). If the Court finds the parent to be unfit, the case proceeds to hearing on whether it is in the minor’s best interest to be freed for adoption. At the “best interest” phase, the burden of proof is preponderance of the evidence. There is no right to a jury trial in either phase.

Since 2009, a parent’s rights may be restored in limited circumstances, and a motion to reinstate parental rights may only be filed by DCFS or the minor themselves. See 705 ILCS 405/2-34 and 750 ILCS 50/14.5 for the criteria.

Case closure and reopening

Upon a finding by the court that it is no longer in the minor’s or public’s best interest for the minor’s wardship to continue, the court may close the case and order all proceedings under the Juvenile Court Act discharged. If the minor has been placed in the guardianship or legal custody of a third-party instead of being returned to the parents, the guardianship or legal custody arrangement may be extended beyond the order closing the case.

If the court does not close the case before a minor turns 19, wardship terminates by operation of law on the minor’s 19th birthday. However, if the court finds it to be in the best interest of the minor and the public, the minor’s wardship may be extended to age 21.

A closed case may be reopened prior to a minor turning 18 when it was closed with the establishment of a guardianship over the minor pursuant to the Probate Act of 1975 and is in the minor’s best interest. 705 ILCS 405/2-33(1).

For former wards whose case was closed subsequent to the former ward’s 18th birthday, or emancipated minors under 18, a closed case may be reopened when it is in the former ward’s best interest. 705 ILCS 405/2-33(2).

Rights of foster parents

A current or former foster parent always has the right to be heard by the court, but does not thereby become a full party.

A current foster parent has the right to adequate notice of any proceeding where the custody or status of the minor may be changed.

If the permanency goal is other than return home to a parent, the foster parent may apply to court for private guardianship of the minor. 705 ILCS 405/2-28(4)(a).

The minor’s current foster parent, or former foster parent if the minor was with the former foster parent for more than one year, may intervene and seek custody of the minor when any motion is filed seeking to restore custody of the minor to a parent or caretaker found to have abused or neglected the minor. 705 ILCS 405/1-5(2)(b).

If the minor’s placement with the current foster parent is being terminated, and the minor has been placed with the foster parent for more than one year, the foster parent is entitled to intervene. 705 ILCS 405/1-5(2)(c).

Special topics

The Indian Child Welfare Act (“ICWA”)

Note: The United States Code uses the term ‘Indian’ as it has been used historically to refer to Native American people and their tribes; it is used here for accuracy and consistency.

In abuse, neglect, or dependency proceedings involving an Indian child, ICWA preempts state law. An Indian child is a minor who is (a) a member of a federally-recognized Indian tribe or (b) who is eligible for membership in a federally-recognized Indian tribe and who is the biological child of a member of an Indian tribe. Congress enacted ICWA in response to the breakup of Indian families by state child welfare authorities.

Generally, proceedings concerning an Indian child should be removed from the state court to the tribal court, unless there is a showing of good cause why they should not be removed or the tribe declines jurisdiction.

If the case remains in the state court, ICWA requires the child to be placed with an extended relative (as defined by the tribe) or in an Indian foster home at all times, unless there is a showing of good cause why it is not possible.

The parent of an Indian child’s rights may be terminated only if the state is able to show, beyond a reasonable doubt, that the parent’s continued custody is likely to result in serious emotional or physical damage to the child.

In this case, DCFS agreed not to remove or refuse to return a child to a parent solely because the parent is poor, homeless, or a victim of domestic violence, unless there is imminent danger to the child’s safety.

As part of the consent decree concluding the case, DCFS promulgated rules and implemented procedures to assist poor parents, including housing advocacy and cash assistance.

In this case, DCFS agreed to provide Spanish-speaking investigators and caseworkers in abuse, neglect, and dependency proceedings.

DCFS also agreed to place Spanish-speaking children with a Spanish-speaking foster parent.

Practice note: Burgos only requires a Spanish-speaking foster home, not a foster home from a similar ethnic or cultural background. With the exception of Indian (Native American) children, federal law prohibits consideration of race, color or national origin in foster placement decisions.

DCFS policy directs caseworkers never to view or address youth with sexual orientation or gender identity concerns as deviant or pathological. Further, it directs caseworkers not to seek treatment or services for the purpose of changing a youth’s sexual orientation or identity.

DCFS has no policy prohibiting people who identify as LGBTQ from becoming foster parents or prospective adoptive parents. However, DCFS policy is to attempt to place a child in a foster home with the same religious views as the parents, or the child if the child is over twelve.

Some agencies that contract with DCFS to provide casework services have religious objections to working with people who identify as LGBTQ as foster or prospective adoptive parents.